Purchase a song online and it will cost you, at most, 99 cents. Download the song via filesharing and it can cost you anywhere from $750 to $30,000. That is the range of statutory damages allowed under federal law for copyright infringement. Can so disproportionate a penalty be constitutional? In a brief filed yesterday in a filesharing case pending in U.S. District Court in Boston, the U.S. Justice Department says yes.

The Justice Department brief accompanies its request to intervene in the music industry case against Joel Tenenbaum. Tenenbaum's lawyer, Harvard Law School Professor Charles Nesson, has filed a counterclaim against the music-industry plaintiffs and a motion to dismiss. He contends that the copyright law's statutory damages provision is unconstitutional in that it authorizes damages that are grossly in excess of any actual damages to the copyright holder.

But the brief by Justice Department lawyer Michelle R. Bennett argues that the law is constitutional. Relying on a 1919 Supreme Court case, St. Louis, I.M. & S. Railway Co. v. Williams, she argues that the statute should be upheld because it does not meet the standard of being "so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable."

Also weighing in on the case is the Free Software Foundation, which filed a brief Friday as amicus curiae in support of Tenenbaum's motion to dismiss. One of the authors of that brief is Ray Beckerman, who writes the blog Recording Industry vs. The People. He says in a post there that the government's brief ignored many of the authorities cited in his brief. The government's brief is also a disappointment to the folks at the blog Blown to Bits. "We might have hoped for better from the new administration. But previous Justice Departments had sided with the recording industries, so perhaps this should have come as no surprise -- even with the enlightened Elena Kagan as the government's top lawyer."

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U.S. Sides with RIAA in Filesharing Case

Purchase a song online and it will cost you, at most, 99 cents. Download the song via filesharing and it can cost you anywhere from $750 to $30,000. That is the range of statutory damages allowed under federal law for copyright infringement. Can so disproportionate a penalty be constitutional? In a brief filed yesterday in a filesharing case pending in U.S. District Court in Boston, the U.S. Justice Department says yes.

The Justice Department brief accompanies its request to intervene in the music industry case against Joel Tenenbaum. Tenenbaum's lawyer, Harvard Law School Professor Charles Nesson, has filed a counterclaim against the music-industry plaintiffs and a motion to dismiss. He contends that the copyright law's statutory damages provision is unconstitutional in that it authorizes damages that are grossly in excess of any actual damages to the copyright holder.

But the brief by Justice Department lawyer Michelle R. Bennett argues that the law is constitutional. Relying on a 1919 Supreme Court case, St. Louis, I.M. & S. Railway Co. v. Williams, she argues that the statute should be upheld because it does not meet the standard of being "so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable."

Also weighing in on the case is the Free Software Foundation, which filed a brief Friday as amicus curiae in support of Tenenbaum's motion to dismiss. One of the authors of that brief is Ray Beckerman, who writes the blog Recording Industry vs. The People. He says in a post there that the government's brief ignored many of the authorities cited in his brief. The government's brief is also a disappointment to the folks at the blog Blown to Bits. "We might have hoped for better from the new administration. But previous Justice Departments had sided with the recording industries, so perhaps this should have come as no surprise -- even with the enlightened Elena Kagan as the government's top lawyer."